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Decision of the TR UK Disciplinary Panel
We have been asked to consider the following allegations made against Mr S:
Allegation 1
On Wednesday 14 August 2019 Mr S used inappropriate and offensive language which may
amount to harassment.
Allegation 2
On Friday 16 August 2019 Mr S exhibited inappropriate behaviour towards a female colleague
which may amount to sexual harassment.
Allegation 3
On the 14/15 August and 16/17 August 2019 Mr S had consumed an inappropriate level of
alcohol which could reasonably be anticipated to affect his conduct.
Allegation 4
Mr S’s conduct put his own and TR’s reputation at risk.
Allegation 5
Mr S did not conduct himself in the manner expected of a senior leader.
Allegation 6
The alleged conduct, if proven, may cause TR-UK to question his judgment and consequently
affect their trust and confidence in him.
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The investigation
1. TRUK’s investigation commenced as a result of a letter from Adam Miller to Geoff
Trukenbrod 6 September 2019 forwarded to General Sir Nick Parker. The letter states
that “credible accusations of sexual harassment were leveled (sic) against the Chief
Executive Officers (the CEOs) of Team Rubicon Global’s sub-licensees in both the
United Kingdom and Australia (the “UK and AUS Organizations”) by a Canadian
volunteer leader (the “Victim”)”
2. There followed an undated letter to General Sir Nick Parker from Geoffrey Trukenbrod.
This letter contains almost identical text to the previous letter with two exceptions:
The first letter states that “Team Rubicon requests that Team Rubicon Global implement the
following quality control measures to preserve and protect the integrity of the TEAM RUBICON
brand…timely terminate the CEOs for cause and in compliance with applicable local law”
The second letter states:
“Whether the measures above, including prohibiting the CEO from participating in ongoing
and future activities in the US would necessitate some employment action with respect to the
CEO including termination for cause under any employment agreement between TRUK and the
CEO in compliance with applicable law, is a matter for the sole consideration of TRUK, though
TRUSA has opined that, following its own investigation, the actions of the CEO would
constitute the grounds for termination for cause if the CEO was a similarly situated employee
of TRUSA”
3. This was accompanied by a document from Art de la Cruz, Chief Operating Officer of
TR USA with the subject “Interviews related to allegations of inappropriate conduct
by [Mr S] CEO Team Rubicon UK”.
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4. The documentary material comprises a series of notes of interviews with anonymous
interviewees which are often inconsistent. The inconsistencies had not been put to the
witnesses or the complainants. No analysis of the evidence had been conducted. Mr S’s
account had not been put to any of the complainants nor had he been afforded the
opportunity to challenge the accounts given by those witnesses and complainants.
Witnesses based in the United Kingdom had not been interviewed
5. We commenced the disciplinary hearing on Monday 30 September 2019 and heard
representations from Mr S and also evidence from two witnesses who were not
interviewed in the course of the investigation conducted by TR USA. They are
employees of Team Rubicon UK and were attendees at the event at the YMCA of the
Rockies at Estes Park Colorado, USA.
6. We were also provided with contemporaneous photographs and text messages by the
witnesses and Mr S which had not been considered by the investigators although some
of them were clearly available to the CEO of TR USA.
7. We were informed by General Sir Nick Parker that Mr Miller had forbidden TR UK
from contacting the complainants and witnesses.
8. We were very concerned as to the impact on the fairness of the proceedings as a matter
of the applicable law in the United Kingdom of the position taken by Mr Miller.
9. We note that the main complainant on the most serious charge is not even a TR USA
employee or volunteer. She has no formal relationship with Mr Miller or TR USA.
10. We do not believe Mr Miller had any proper basis and certainly no legal entitlement
whatsoever to “forbid” General Sir Nick Parker from contacting any of the witnesses
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or complainants. However, as the panel were provided with only anonymous statements
it was not possible to approach the potential witnesses and complainants directly.
11. On 4 October 2019 we wrote to Adam Miller and Art de la Cuz of TR USA to request
their assistance with our enquiries into the allegations made against Mr S.
12. We explained that TRUK is regulated by the Charity Commission and is obliged to
respond appropriately to such allegations which will entail conducting an investigation
and reporting serious incidents to it. We also explained that an allegation of serious
sexual misconduct against the Chief Executive of a Charity is unquestionably a serious
incident within the Commission’s guidance.
13. We explained that there are senior officers of the respective Team Rubicon entities
whose assistance we required to ascertain facts which are relevant to our enquiries. We
trusted that those senior officers would appreciate the importance of our enquiries and
the potential impact upon all Team Rubicon entities from a report to the Charity
Commission for England and Wales and that they would render all such assistance as
it was in their power to provide.
14. We asked Mr Miller and Mr de la Cruz to approach each of the complainants and
witnesses and ask them if:
(a) They would co-operate with our enquiries; and
(b) They would be prepared to answer our questions.
15. We also explained that it would be our expectation that should any of the complainants
and witnesses wish to communicate directly with us that they should be free to do so
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and that nothing should be done to inhibit or frustrate their communications with us.
We offered an email address for contact.
16. We asked Mr Miller and Mr de la Cruz to explain that there is no obligation on any
complainant or witness to co-operate with our enquiries. However, if we were unable
to obtain information which is material to our understanding of the events then this
would affect the conclusions we are able to reach and the subsequent actions we would
be able to take.
17. We asked for responses by 11 October 2019.
18. However, instead of contacting the individuals and asking for their assistance which
would have expedited our decision, Mr Miller sent a breach notification letter to TRG
complaining of delay.
19. We have considered carefully why Mr Miller sent the breach notification when he did
rather than pass on our request to the witnesses and complainants. It is our view that it
would have been obvious to him from our correspondence that there was now to be a
proper investigation of the facts conducted by independent trustees, one of whom was
legally qualified and experienced in the conduct of investigations into sexual
harassment allegations. He had been informed by the correspondence that in the United
Kingdom trustees are accountable to the Charities’ Commission and that a report would
be made at the conclusion of our investigation. He was also aware that as a matter of
the law of the United Kingdom “if we were unable to obtain information which is
material to our understanding of the events then this would affect the conclusions we
are able to reach and the subsequent actions we would be able to take”.
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20. It is a serious matter for men in Mr Miller’s position to exclude adult women of sound
mind from involvement in proceedings which affect them and to determine on their
behalf and, apparently without consulting them, whether and on what basis they may
speak to a female decision maker. Every witness who wished to speak to us was
interviewed except those whose role was usurped by Mr Miller.
21. It is our view that Mr Miller sought to take advantage of the allegations for political
purposes, namely, wresting control of the Team Rubicon network from Team Rubicon
Global to Team Rubicon USA and was willing to sacrifice both the interests of fairness
and of justice to potentially aggrieved complainants in order to achieve this.
22. We also consider that the overriding and improper political objectives of the Team
Rubicon USA leadership was largely responsible for the serious inadequacies in the
investigative work undertaken on their instruction.
23. It is apparent to us that a fair and proper investigation leading to robust findings of fact
was a secondary consideration to the political objectives and that the interests of the
complainants were sacrificed to this end.
24. Notwithstanding what we consider to be the improper motives of the leadership of
Team Rubicon USA in seeking to thwart an independent investigation and in seeking
to capitalise upon the complainants’ clear distress, the allegations are serious and we
have therefore set out in considerable detail our findings of fact, so far as we are able.
and also a number of other matters which come to our attention in the course of our
enquiries which caused us significant concern and which we are obliged to bring to the
attention of the full Board of Trustees.
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Matters relating to the conduct of the investigation
25. Mr S has raised concerns as to the fairness of the investigation undertaken by Team
Rubicon USA which must be considered by us in accordance with the laws of England
and Wales by which his contract of employment is governed.
26. If an investigation is not fair then any findings based upon it would be arrived at on a
fundamentally flawed basis and therefore unlikely to withstand independent scrutiny
by either a Tribunal or the Charity Commission. We are conscious that any findings or
sanctions applied or not applied by us as a result of an unfair process would be unjust
to both the complainants and the accused and would potentially put at risk other
vulnerable people. It also puts Team Rubicon UK, as a charity, at risk.
27. We must address our minds to the weight that we can give to an investigation report
which comprises a series of anonymous statements where there has been no testing of
the evidence, the subject’s account has never been put to the complainants or witnesses
and where we have been unable to judge the demeanour and credibility of the
complainants and witnesses.
28. We have considered whether Mr S was disadvantaged by the use of anonymous
statements. We have been able to identify all the complainants and the key witnesses.
Where we have not been able to identify a witness we have disregarded their evidence
and take no account of it. It is apparent to us from his written defence statement that Mr
S has been able to identify from the materials the identity of the complainants and the
key witnesses. Although reliance on anonymous statements is not good practice, in
these circumstances we do not believe that Mr S has been disadvantaged by their use
in this case.
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29. However, we are concerned by the failure of the investigators to conduct any testing of
the evidence or to deal with inconsistencies in the accounts given by witnesses to the
same incident.
30. Mr S’s account has never been put to any of the complainants and witnesses.
31. We asked Mr Miller and Mr de la Cruz to address our questions relating to the failure
to test the evidence and to put Mr S’s account to the complainants and witnesses and
we received a response instead from John Pitts of Kirkland and Ellis LLP:
“Team Rubicon strongly and unequivocally believes its investigative report was thorough,
unbiased and accurate. We are not aware of any legitimate reason to question the findings
presented therein.”
32. We consider the failure to address the inconsistencies in the witnesses’ accounts and
the failure to put Mr S’s account to the complainants to undermine both the accuracy
of the report and to be a legitimate reason to question the findings presented therein.
33. Mr Pitts further addressed us:
“We are extremely concerned with the content and tone of a number of these inquiries,
many which appear to either attempt to “blame the victim” or are entirely irrelevant
(no matter how answered) as to whether Mr. S engaged in misconduct. Fundamentally
and simply stated, Team Rubicon UK should be asking whether [Mr. S] engaged in
misconduct. We strongly encourage Team Rubicon UK to re-consider pursuing many
of these lines of inquiry with complainants and witnesses lest further irreparable
damage be done to the victims and the organization at large.”
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34. An example of a question considered unacceptable by Mr Pitts was in relation to why
a complaint was made several days after the alleged incident had taken place (and in
the knowledge of another complaint having been made):
“Did you ask her why she had not raised a complaint at the time of the alleged
incident?”
Mr Pitts states:
“This is not relevant as to whether Mr. S engaged in misconduct. Victims are entitled
to come forward and report incidents when they feel comfortable doing so and Team
Rubicon would not feel it appropriate to shame or intimidate victims by asking these
sorts of questions. The timing of the complaint has no impact on its veracity.
35. Firstly, it is relevant to the credibility of a complaint as to whether there is a reason for
the complainant not to have reported the incident when it occurred. There may be a very
good reason, such as a risk to personal safety. The absence of a good reason is a factor
the decision maker is entitled to take into account when determining the truthfulness of
the complaint. It is also relevant as to whether there is an improper motive behind the
complaint. This is a question properly asked in cross examination in English courts on
a daily basis. In short, the timing of a complaint may have an impact upon its veracity
and it is a matter which may properly be taken into account by the decision maker.
36. Secondly, the statement that “Team Rubicon would not feel it appropriate to shame or
intimidate victims by asking these sort of questions” is illustrative of the adoption of a
flawed investigative methodology that so fundamentally undermines the fairness of the
investigative process that no reliance is likely to be able to be placed on any conclusions
reached.
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37. It is apparent that Team Rubicon USA under the inexpert guidance of John Pitts
considers that any complaint of sexual harassment must be assumed to be true and that
the asking of very obvious questions designed to test the veracity of the complaint is
impermissible. In insisting that complaints of sexual harassment be taken at face value
TR-USA is making an assumption. In sexual harassment cases, the presumption of the
truth of the complaint amounts to a presumption of guilt on the part of the accused.
38. We have considered whether the conduct of the investigation was fair and we have
concluded that it was not.
39. The unfairness of the prior investigation is a matter we must address and we have sought
in the course of the disciplinary proceedings to deal fairly with the very significant
shortcomings of the investigation report and our inability to test the evidence or to put
Mr S’s account to the complainants and witnesses.
40. We have given greatest weight to the contemporaneous written and photographic
record. Then we have given weight to the oral evidence of the witnesses with whom we
have been able to speak and whose credibility and truthfulness we have been able to
form a view. We have given some weight to the parts of the evidence in the written
statements where that evidence is corroborated by the majority of witnesses to the event.
Where there are only a few witnesses and the accounts are inconsistent we have sought
to place the greatest weight on the account which according to our judgment seems to
us to be the most reliable.
41. We have not named the complainants and where their names appear in the
contemporaneous written records we have redacted them. We have named all other
witnesses.
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42. We addressed 23 questions to Mr Miller and Mr de la Cruz for information which we
anticipate was within their knowledge or could easily have been ascertained by basic
enquiry. They declined through John Pitts to answer our questions as they were
“irrelevant”.
43. Relevance is a matter for us to determine.
The Complaint
44. On Saturday 17 August 2019 at 10:14 Complainant 1 made allegations of sexual
harassment against two men, Mr S and Mr E, the CEOs of TR UK and TR Australia to
Bryan Riddell the CEO of TR Canada. Bryan Riddell sent an mail to Mr S, Mr E and
Jake Wood:
“Gents
When the team and I jumped in the car this morning. I was happy with the outcome of
our visit and excited for what lies ahead. That was derailed when one of my team
members, [Complainant 1], clearly distraught, proceeded to tell me that [Mr S] had
made inappropriate advances toward her last night and [Mr G] had made an
inappropriate sexual comment towards her.
Whether you see this as a misunderstanding is irrelevant. Perception is everything.
I’m really disappointed. I should let [sic] have to say this but I’m going to: we have
impressionable young people in our ranks. We can’t be taking advantage of those who
look to us as the example. None of us are special: our positions, and the responsibilities
that come with them, are. I am no saint, gents, but I tell my people that if we can’t lead
on the moral and physical plane, we’re unfit to lead. We need to be better.
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Bry”
45. Mr S wrote to Bryan Riddell by return:
“I will of course apologise sincerely to [Complainant 1] if I have caused any offence,
as you are right, perception is everything.
However, we were all together in a public lobby larking around and she was clearly
having relations with another person who doesn’t need naming (not [Mr G] by the way)
and the further details of that are none of my business. If you provide me with her email
I will of course write to her but the story is somewhat distorted.”
46. Bryan Riddell wrote back:
“Make no mistake Ashley and I are both disappointed in [Complainant 1’s] judgment
last night. [Complainant 1] was quite literally auditioning for a job. I don’t want his to
jeopardise what we’re all trying to build, and after some thoughts this morning. I
thought it better that it’s aired with you guys and resolved as quickly as possible. I know
it takes two to tango”
47. Mr S replied:
“Neither do I and I make zero judgment. If I have done anything, even in perception, to
make her feel uncomfortable, that is my fault and I am very sorry. I have sent her an
email for forwarding to her apologising too”.
48. A few minutes later Mr S sent another message:
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“sorry mate, just one more thing that I want to be explicit on as its important, I most
certainly did not make a pass at Complainant 1.
When I calmed down the situation which was happening in the lobby, I stood outside
with her and had a cigarette. No sexual advances though, I may have been clumsy in
my handling of the situation and for that I am truly sorry if she felt at all uncomfortable,
but it was to prevent them making a bigger mistake in public.
For our relationship it’s important that I conveyed my point to you but will still own
the mistake and my apology to her (and of course you)”
49. The apology was sent by email by Mr S:
“Bryan
Please forward this to Complainant 1 on my behalf as I don’t have her details
Dear Complainant 1
I am sincerely, deeply, sorry if I have in any way upset you or been inappropriate. That
should never happen and I hope that it doesn’t ruin what should have been a great week
for you.
I make no excuse and I am really very sorry
I hope you have a safe trip back to Canada
Kind regards and my sincere apologies again
[Mr S]”
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50. At about the same time there is a text message from Bryan Riddell to Jake Wood:
“I had a prelim convo w [Mr G] and [Mr S]. [Mr S] is adamant that he walked in and
separated a situation between [Complainant 1] and Eric from TRA. I told him I had to
wait to hear Complainant 1’s account”
51. It appears to us that the allegations of inappropriate sexual comments by Mr G and
inappropriate advances by Mr S were made against the background of Complainant 1
applying or “auditioning” as it was described by Mr Riddell for a permanent paid
position with TR Canada and her senior and, it is supposed, appointing managers being
“both disappointed in [Complainant 1’s] judgment last night. [As] [Complainant 1]
was quite literally auditioning for a job.
52. We have carefully considered Mr S’s reaction to the allegation and it appears to us that
from the outset that he denies “making a pass” at Complainant 1 and explained that he
found Complainant 1 in a compromising position. We have considered what he might
have meant by apologising for upsetting her or “being inappropriate”. In this respect
the explanation given concurrently to Bryan Riddell is helpful in that it appears that it
was not intended by Mr S to be an apology for making a pass at her but for his clumsy
handling of the situation. The apology itself, however, is less ambiguous. Mr S
explained to General Sir Nick Parker that at the time he wrote the effusive apology “he
had not connected the dots up on this point”. We consider that very likely to be true.
53. It is clear that by the time Complainant 1 came to write her statement at a later point
that day (TR USA being unable to assist us in determining the precise time),
Complainant 1 either knew or anticipated that her relationship with Kris O’Brien was
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relevant to the context of the allegations and she volunteered this information in her
first written complaint sent on the afternoon of 17 August 2019:
“Context – my relationship with Witness 5 Director TR AUS
Witness 5 and I had spent the afternoon together in the same workshops and formed a
really great friendship quickly as we have a lot in common, especially also having both
gone through some major transitions in our lives over the last year. We also found a
great deal to discuss about our TR roles with tech volunteer management and mental
health. We hadn’t had the opportunity to finish a lot of our conversations that
afternoon, both personal and TR related, after I called a greyshirt leader at home, so
much of that was continued after dinner in between socialising with the larger group.
Escalating that to a sexual relationship that evening did not transpire nor was that ever
the desired course of action for me regardless, but especially at a TR event as two
members of leadership. Witness 5, Director TR- AUS offered to stay up with me until
we had to leave for our flights, given my decision to stay awake. Initially I was happy
to accept the company of a new friend, but upon reflection I also feel fortunate that he
did so given the incident that occurred with [Mr S]”
54. We were given a great deal of further information about the perception of the
relationship between Complainant 1 and Kris O’Brien by other attendees at the
Leadership Conference in Estes Park from TR-UK - Ms F and Ms C. It appeared to us
that they were truthful and credible witnesses.
55. We give considerable weight to the accounts given by Ms F and Ms C as they are
women of seniority and experience and at the event either abstained from alcohol
entirely or consumed alcohol in very small quantities. We therefore consider that their
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evidence has the advantage of being uninfluenced by excessive alcohol consumption
and give it greater weight accordingly. We also note that they are considerably older
than the other women involved.
56. We consider in respect of Ms C that her evidence is particularly disinterested as were
we to conclude that Mr S should be dismissed she would be the most likely successor.
57. Ms F told us that it was she who had introduced Complainant 1 to Kris O’Brien “and
they had seemed to have really hit it off”.
58. Ms C told us that having introduced them “Ms F kept track of the fact that they seemed
to like each other”.
59. Ms F explained to us “everyone seemed to be getting more and more drunk and
[Complainant 1] and Kris O’Brien were getting more and more flirty… it seemed to be
quite disrespectful as they were talking through Jake Wood’s Q&A and myself and Ms
C could not hear what was being said”.
“They all had tickets for a couple of drinks…Geoff [Evans] came back from the toilet
with two loads of tickets that he had been given. He gave them to the volunteer, Kris
O’Brien and there was a lot of alcohol flowing… there were more and more tickets
after Geoff came back from the bathroom as he had been given a long stretch of about
20 to 25 tickets. He gave them to Kris O’Brien who went off to get more beers for the
two Canadian girls [ Compliant 1 and Ashleigh] and the CEO [Brian]”
“R is admittedly a lightweight but he didn’t have any more than anyone else at the table
and by no means was anyone sober”
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60. Ms F explained to us that the next morning “Ms C and Ms F had picked up Mr S on
the way to breakfast and she had said to [Mr S] that [Complainant 1] and Kris seemed
to be flirting and [Mr S] had agreed…[Mr S] had told her that when he and Ryan had
got back to reception that they seemed to be quite close to each other. [Mr S] had said
some things which I thought was off. Jake Wood had drummed it into everyone that
while we are all adults it was important to be respectful and for everyone to behave
themselves…she cannot remember when this was but it was later in the day when she
queried about it that [Mr S] had apparently broken up and stopped them from having
sex in the public area”
61. Ms C recalls that at breakfast the following morning “she remembered a passing
comment that Ms F had made regarding a girl from Canada who was being quite flirty
with an Australian Guy called Kris O’Brien as we had been hanging out with them in
the evening. Ms F mentioned something about the Canadian girl having set her sights
on him. It was quite a drunken night. [Mr S] had said to Ms F in the morning that
something had happened between them [ Complainant 1 and Kris O’Brien] and Ms F
had said “She knew it!” What was said was something to the effect that they had been
caught on the sofa and the accommodation was in the open with glass doors. She was
obviously concerned given the openness of the venue”.
62. We have been shown a text message from Jake Wood to Mr S and Bryan Riddell sent
on 16 August 2019 22:46 which shows a photographs taken by Jake Wood of himself,
Complainant 1 and Mr S. This photograph did not form part of the original investigation
nor was it disclosed to us by Mr Wood. We are unable to account for its omission.
63. In the photograph Complainant 1 is sandwiched between the two men. Her back, head
and neck are resting on the chest of Mr Wood. The left hand side of her face is pressed
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against the right hand side of Mr S’s face. What appears to be her fingers appear at the
back of Mr S’s neck. She is laughing and both men are smiling. All are facing towards
the camera of the mobile phone. Mr Wood appears to be taking the image. The image
is accompanied by the text from Mr Wood to Mr Riddel the Chief Executive of TR
Canada “Weak”. Mr Riddel responds immediately “I’m driving. She’s so fired”
64. Complainant 1 states that she and Kris O’Brien “moved to the Wind River Lodge lobby
to finish a conversation we had started earlier, departing from the main group of about
10 people” when Mr S and Ryan Risley arrived and walked into the lobby having
decided to go to bed.
65. Ryan Risley was asked how drunk Mr S was and said “he was just in a really good
mood but how drunk he was I don’t know.”
66. Mr S told us:
“There was a hollow square of sofas and the Canadian and Australian, their heads
popped up from the sofa. I couldn’t see through the sofa but it seemed she was lying on
top of him. There was that flustered tension. We instantly made a joke of it, it was light
hearted. We dealt with it in a peer related way. We sat on the sofa opposite.”
67. Ryan Risley records seeing Complainant 1 and Kris O’Brien “talking in the lobby on
the couch… it was obvious [they] were having a private conversation and [he] didn’t
want to interrupt and preferred to go to his room but [Mr S] plopped on the couch”.
68. Mr Risley says that “[Mr S] then claimed there was elk outside and they all headed to
go outside. Kris O’Brien and [Complainant 1] were outside first and while he was still
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walking to the door he heard [Mr S] say “just kidding” so they headed back to the
couch.”
69. Kris O’Brien said that in the lounge he “could not remember anything specific that was
said that could have been offensive…he was talking to [Mr S] about [Mr S’s] upcoming
wedding. There was banter back and forth and swear words were being used but
nothing that sticks out as inappropriate up to that point. At that point in the night an
ambulance came and [Kris O’Brien] went outside to see what happened. When he was
outside Complainant 1 approached him and told him that [Mr S] was acting
inappropriately towards her. He told her that she should go to bed and remove herself
from the situation. She said she didn’t want to go to her room yet since [Mr S] was
extremely intoxicated”
The circumstances of the alleged harassment
70. Complainant 1 says:
“at some point (closer to 1:30 - 2am) [Mr S] joked about there being elk walking
outside the door. The three of us on the couches got up to check it out but sat down
immediately after realising the joke.
[Mr S] then invited me to join him outside for a smoke. Though I don’t smoke, I took
the opportunity to chat with him since we hadn’t spoken much in the past couple of days
and the opportunity to talk to the head of another TR was valuable to me.
Our conversation began normally, talking about the conference and how amazing the
location was, but quickly escalated to him initiating physical touching which made me
very uncomfortable, such as grabbing my hands, putting his arms around me, making
attempts to kiss me. His comments included saying “you know that joke was meant to
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get you alone” and general inferences/invitations to sleep with him while trying to grab
my hands or waist: repeating often “come on it would be fun”. While trying to exit the
conversation, I said “you are too drunk” and “you are getting married in a couple of
weeks ” to which he responded “it’s alright, it doesn’t matter”. I told him that no, I’m
not doing this, repeating myself several times and pulling away from his attempts to
touch me. I was able to back away from him and went back inside with the other two.”
71. Mr S told us:
“I offered everybody a cigarette and [Complainant 1] said yes. She came outside and
said that she didn’t smoke. There was a massive full moon. It was just a conversation.
She asserts that she felt that it was a good opportunity to spend time with a senior
person from another organisation. But in her statement she said that she found me
horrible. If I was an ogre why would she come outside with me. There was no incident.
We came back inside, we were all laughing and joking and talking about my wedding.
It was a non-event. Ryan Risely said we should go to bed. We are in danger of
cockblocking the situation”.
72. “Cockblocking” we understand to be an American slang term for an action, obstruction
or intervention that serves to prevent or impede another man’s sexual access to a
woman. We sought to speak to Ryan Risley and to confirm whether he recalls making
this comment. However, TR USA did not pass on our request to Mr Risley and we have
been unable to confirm with Ryan Risley that this is what he said. We do consider that
it has the ring of truth about it and it does makes sense in the context.
73. Complainant 1 said she “did not want to go to her room. [Mr S] came back in and the
comments became more explicit and obvious”.
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74. Kris O’Brien, however, records the comment made by Mr S to be “come over here and
talk to me” and gestures to where he was at in the room.
75. Ryan Risley does “not remember the order they came back in but eventually they all
came back into the lounge area. He recalls “seeing {Mr S] hold Complainant 1’s hand
([Mr S]was sitting on the couch and Complainant 1 was standing up”).
76. Ryan Risely contradicts Complainant 1 stating that he “did not see any inappropriate
behaviour when they were in the lounge”. He says further that he “heard [Mr S] tell
Complainant 1 on a few different occasions that he didn’t want her to go to bed”. This
would appear to undermine Complainant 1’s assertion that Mr S “wanted to go to bed”
with her.
Complainant 1 and Kris O’Brien follow Mr S to his room
77. Ryan Risely said that:
“he was finally able to get [Mr S] to get up and convinced him to go to bed… he was
leading [Mr S] over to his room when he noticed that Complainant 1 and Kris O’Brien
were a few steps behind Mr S. He mentioned that he did not know why Complainant 1
and Kris O’Brien were following them to their rooms but thought that they just wanted
to ensure that [Mr S] got to his room safely. Once [Mr S] got to his door, he walked
over to his room (two doors down from Mr S’s room) and when he looked back he saw
Mr S shaking Complainant 1’s hand. He could not hear what they were saying to one
another but based on the body language it seemed like Complainant 1 was saying “I
need to go pack” [Mr S] then closed his door and Kris O’Brien and Complainant 1
headed back to the lobby.
22
78. Ryan Risely emphasised that “Mr S’s not wanting to go to bed is nothing new”
79. Kris O’Brien said Complainant 1 and Kris O’Brien
“decided to walk Mr S over to his room to ensure he made it back safely. While they
were walking Mr S to the room he did not hear anything inappropriate but also noted
that he was aware of how intoxicated [Mr S] was and intentionally kept distance away
from [Mr S] in case he got aggressive or physical… when they got to [Mr S’s] room,
[Mr S} tried to get Complainant 1 to go inside by gesturing her in and saying “come
in, come talk to me”.
80. Mr S was sharing a room with Adam Szafran with whom he had a history of disputes
regarding the treatment of TR UK staff by Mr Szafran. Adam Szafran was awakened
at around 2am by Mr S returning to their room:
“Mr S was in the doorway and was holding the door open… and it was clear that Mr S
was absolutely wasted and incredibly intoxicated. Over the course of 5 - 10 minutes he
was talking to someone on the other side of the door. [Adam] never saw or heard the
other person’s voice and did not know who it was or whether that individual was male
or female… it was clear he was making sexual advances to the individual on the other
side and was trying to coax them into the room. Shantal asked Adam [if] he remembers
[any] specifics in relation to the “sexual advances” [Mr S] was making to the
individual on the other side of the door? Adam said he could not hear anything other
than [Mr S] saying “Come on in” several times over and “come on in, it’ll be okay”.
81. Complainant 1 wrote:
23
[Ryan Risley] was going to help Mr S get back to his room as he was very intoxicated
so I told [Ryan Risley] I think it is time to he do so. At that point I did not want to return
to my own room (which was right down the hall and visible from where we were sitting)
because I felt uncomfortable letting Mr S know where my room was. During this time,
Mr S’s invitations/suggestions to join him in his room became more pushy and
straightforward, saying things like “come on, it will be fun” and repeatedly asking what
time I had to be ready by and implying we could engage in something before I needed
to leave (comments such as “What time do you have to go? We could be done by then”)
I repeated myself several times that I was not interested in joining him; that while I had
enjoyed his company as a TR colleague, I am not going to do this and he needs to go to
sleep. Feeling fed up and really uncomfortable I went outside to grab [Kris O’Brien]
(who had stepped away in the middle of the conversation, paramedics had arrived for
an unknown separate incident and he had been holding the door for them and had since
stayed outside). I told [Kris O’Brien] I needed him to help me walk with [Ryan Risley]
and Mr S back to their rooms and be a buddy as I walked back to mine. I asked [Kris
O’Brien] to do so as I figured when [Ryan Risley] returned to his room, I would have
possibly been alone with Mr S and I wanted another person who I could trust to be
there. He agreed and we walked the two to their rooms which were just around the
corner from mine. Mr S made beckoning gestures to me as he stood in the doorframe
to his room, still making remarks such as “please come in” ,“it will be fun”. I again
repeated no, telling him to go inside, and I will be going to my own room. [Kris
O’Brien] then walked with me back to my room, we said goodbye and I went inside to
pack for departure”
82. Mr S told us:
24
“She has stated that she didn’t want to go back to her room, she was fearful of me
knowing where she was staying. But it was a considerable walk away. I was only aware
of the two of them choosing to follow me to my door and I was at my door for a bit
because my key was not working and it was one of those Travelodge ones. She went to
walk back. I assumed that her room was further on from mine, the Australian was not
in view. I just said “don’t go back to the lobby, no hanky panky”. It took a matter of
seconds and she went on her way. I say I may have misjudged this because I was actively
looking the next day for something I might have done wrong. I went inside my room
and I never saw her or him again.”
83. He was asked why he decided to get involved between the two people?
“It was an instinctive reaction. There were two young people doing something silly in
a public place, it was just inappropriate. We had an opening briefing about ‘don’t be a
bystander’ but I would have done it anyway. I should have reverted to someone else
with authority, I have now learnt that lesson.”
84. He was asked whether in terms of the Code of Conduct at Team Rubicon there was
anything regarding personal relationships between staff?
“Not explicitly, it is only in hindsight that I realise there was a power dynamic. I
instinctively felt that if it was in a bedroom it would have been ok. They were clearly
getting closer over dinner. This is something that Ms F can speak to; I was trying to do
a favour to two young people.”
85. He was asked why he thought the Complainant had made these allegations?
25
“There are two serious allegations raised against [Mr G] and I. My take at the time
was that she was aware that she had made errors in judgement. I could have reported
her and [Mr G] was the line manager of Kris. So she escalated it and this smeared my
character. My sense was that was that this was why she made a false allegation”.
86. Ms F and Ms C also informed us that their room was directly opposite Mr S’s room and
that there was no soundproofing of the doors. They told us they could hear everything
which occurred in the hallway. Ms C, we were told, is a very light sleeper. They heard
nothing that night which disturbed them. We consider it very unlikely that the
discussions between Mr S and Complainant 1 could have taken more than a few
seconds. We consider that, having been abruptly awoken in the early hours by Mr S, it
may have seemed to Mr Szafran that the exchange took significantly longer than it did.
We make no criticism of Mr Szafran and note that witness recollections as to the
duration of an incident are notoriously unreliable.
87. As we were prevented by Mr Miller of Team Rubicon USA from speaking to
Complainant 1, Kris O’Brien, Ryan Risley and Adam Szafran, we were unable to put
to them the inconsistencies apparent from the four accounts or Mr S’s position. This is
a highly unsatisfactory state of affairs and we have considerable misgivings in relation
to some of the evidence.
88. We take into account that individuals under the influence of alcohol do not necessarily
make rational decisions and we consider it likely that Complainant 1, Kris O’Brien and
Mr S had consumed a considerable quantity of alcohol in the course of the evening.
26
89. It is not necessary for us to make any finding as to whether or not Complainant 1 and
Kris O’Brien either were or were about to enter into sexual activities in the public lobby
of the lodge. We are satisfied that Mr S had a genuine belief that they were and that this
influenced his decision to interfere. We also consider it likely that it was apparent to
Complainant 1 that this was what he had thought from her anticipatory reference to her
relationship with Kris O’Brien in her first written statement.
90. We draw support for this conclusion from his discussion with Ms F and Ms C at
breakfast the next morning as to what he believed he had seen Complainant 1 doing
prior to his learning that allegations had been made against both him and Mr E. We
have considered whether the converse might be true and that the suggestion of public
promiscuity on the part of Complainant 1 might have been an attempt to discredit
Complaint 1 and undermine confidence in her allegations against him. We have looked
very carefully at the written correspondence which immediately follows the
communication of the allegations to Mr S and it appears to us that his denial is genuine
rather than tactical.
91. There are no independent witnesses as to what happened after Complainant 1 went
outside with Mr S. There are some matters which are material to our consideration as
to which account of what happened is to be believed which we should have liked to put
to Complainant 1.
92. There are a number of reasons why we are unable to accept the account given by
Complainant 1 at face value and without testing the evidence as we are being
encouraged to do by the lawyers instructed by TR USA.
27
93. It is not clear to us why she decided to go outside with Mr S for a cigarette when she
does not smoke.
94. We would have liked to ask her about the photograph taken of her and Mr S earlier that
evening. It appears from the photograph that she is the instigator of physical contact
with him. It appears from her demeanour in the photograph that she has no aversion to
close physical contact with him.
95. We would have liked to have asked her why she needed to go outside to take the
opportunity to “chat with him, since they had not spoken much in the past couple of
days, and the opportunity to talk to the head of another TR was valuable to her” when
they had been sitting together with two others on the couches in the lobby for some
time.
96. We do not understand why Complainant 1 did not return to her room which she shared
with another female volunteer and which had a lock rather than follow Mr S to his own
bedroom if she perceived herself to be at risk from Mr S and had just been the subject
of an unwanted advance.
97. We would have asked her why she held Mr S’s hand when he was sitting and she was
standing as witnessed by Mr Risley. It would appear from his description that she was
in a strong position to have avoided contact with Mr S had she wished to.
98. We would have asked her about her stated reason for accompanying Mr S and Ryan
Risley to Mr S’s bedroom with Kris O’Brien (that she did not want to be alone with Mr
S if Ryan Risley had then gone into his own room) when the more obvious answer
would have been to go to her own room with Mr O’Brien.
28
99. We have carefully considered the evidence given by Ryan Risley who would appear to
be the most neutral and sober of the four participants. He attributes the behaviour and
comments made by Mr S as being down to his not wanting to go to bed and end the
evening which appears to be a particular characteristic with which he has had previous
experience (“[Mr S’s] not wanting to go to bed is nothing new”).
100. None of the other people in the lounge suggest that Mr S showed any particular
attraction towards Complainant 1.
101. The comments attributed to Mr S and overheard by others (we accept that they are likely
to be correct given the consistency between them) are not explicitly sexual in nature
“Come in, talk to me” and “it’ll be alright”.
102. It is implausible that Mr S would have sought to induce a women believed by all TRUK
attendees to have a very strong attachment to Kris O’Brien to enter a sexual relationship
with him in a room containing Adam Szafran in front of Mr O’Brien or that, even in
drink, he would have contemplated that this would be a remotely attractive prospect to
Complainant 1.
103. We have considered whether there is any reason for Complainant 1 to make a false
allegation.
104. False allegations may be made for a number of reasons including regret, shame,
embarrassment, to deflect attention from discreditable conduct or promiscuity on the
part of the complainant or to advance some ulterior motive or even to gain attention or
an emotional reaction from others. It may also be the complainant’s genuine belief that
she had been sexually harassed although an independent observer may disagree.
29
105. We are also conscious that individuals under the influence of alcohol lose their
inhibitions and may engage in behaviour which they would not have done had they
been sober and that both Mr S and Complainant 1 had consumed a considerable quantity
of alcohol.
106. We also bear in mind that people are seldom entirely candid about their own sexual
behaviour.
107. We are conscious that having made an allegation and caused three charities to engage
in resource intensive and expensive investigations at the expense of donors and with
the diversion of funds from the intended beneficiaries it may be difficult for a
complainant to withdraw the allegation even if she were to subsequently have second
thoughts.
108. We are not confident in the account given by Complainant 1. Our conclusions may have
been different had we been afforded the opportunity to put our concerns regarding her
evidence to her.
109. It is matter of serious regret and concern that this was prevented by Mr Miller who
appears not to have had any proper legal basis for the position he took not to inform
Complainant 1 of our request for her assistance. We consider that Complainant 1 would
be entitled to a hold justified sense of grievance at the way in which she was excluded
from the disciplinary process.
110. We must determine the allegation on the basis of our assessment of the evidence we
have before us. We have considered carefully whether on the balance of probabilities
we are able to conclude that Mr S sexually harassed Complainant 1 and we find on the
balance of the evidence that he did not.
30
The Second Complainant
111. We were told by John Pitts that:
“Complainant 2 became aware that an investigation of harassment was being initiated
when Josh Anderson (one of the Team Rubicon interviewers and Team Rubicon’s
interim head of HR) provided an incident update on 20 August 2019 to the Team
Rubicon HR team, of which Complainant 2 is a part.
Complainant 2 had mistakenly assumed that another complainant had already reported
Mr. S’s behavior toward her and that the investigation was related
thereto. Complainant 2 then approached Josh Anderson to share her statement, only
then learning that it was a separate episode. At this stage, Josh Anderson was obligated
to include this additional episode in the investigation.”
Complainant 2 indicated that she initially did not intend to report Mr. S’s behavior,
though she was troubled by it and found it unbecoming of an executive. She provided
her statement once she understood that Mr. S had engaged in a pattern of misconduct
that needed to be reported and documented.”
112. There is no evidence as to whether she concluded that there was a “pattern of
misconduct that needed to be reported and documented” of her own initiative or
whether she was told that there was a pattern of misconduct that ought to be reported
and documented. As we have indicated above we have not upheld the allegation of
sexual harassment made by Complainant 1.
31
113. We are conscious of the importance of scrutinising each allegation of sexual harassment
carefully and independently.
114. It is clear that but for her awareness of the allegation made by Complainant 1,
Complainant 2 had not intended reporting Mr S. We would have liked to have asked
her what she was told immediately prior to making her complaint and how she had
come to understand that there was a “pattern” of misconduct. We note that her
complaint is contradicted by another independent witness who states that he was
watching very closely what happened so as to determine whether or not he needed to
intervene.
115. In her verbal statement made to Josh Anderson on 20 August 2019 she is reported to
have said:
“[Mr S], noticeably intoxicated made comments indicating that he felt like they “really
hit it off” at the 2017 Christmas Party in Los Angeles. He then proceeded to make
repeated “passes” at her making physical contact and noticeably hitting on her to the
point that he told her she needed to get away from him “before something happens”.
116. Complainant 2 elaborated further in a written statement on 20 August 2019:
“[Mr S], noticeably intoxicated, made comments about her appearance and how she
was a “Hot American” and was incredibly flirtatious throughout the night. She was
sitting at the base of the fireplace and he came and joined her, she was visibly
uncomfortable by how close he was sitting that she would subtly move in the opposite
direction. When she moved, he moved, he placed his hand on her back and touched her
leg like any drunk guy would at a bar”
32
We have compared this account with the statement made by Trip Henderson who said
that he was closely observing the interaction between them:
“When [Mr S] was sitting on the hearth of the fireplace next to Complainant 2, saw
him lean closer to her a couple of times. No hands or anything. Saw Complainant 2
scoot over a couple of inches. I was watching him really closely. I was interpreting
Complainant 2. Didn’t see her jump or move or anything – took that to mean she wanted
to put some inches between them, but not that she wanted to get away. If [Mr S] got
hands-y or Complainant 2 got up and moved, was prepared to do something.
He also noticed that Complainant 2 “continued to interact with him” Trip Henderson
also “confirmed that he did not see any physical contact between Complainant 2 and
[Mr S], nor did he hear anything inappropriate exchanged between the two”
117. We note that Mr Henderson states that he was prepared to do something if he felt it was
necessary for the protection of Complainant 2 but that he had determined that it was
not. We also note that he did intervene in respect of Complainant 3 as described below.
118. On the basis of the evidence provided by Mr Henderson we cannot conclude on the
balance of probabilities that Mr S engaged in any harassment of Complainant 2. At
worst, he invaded her personal space. We do not accept that Mr S made “repeated
“passes” at her making physical contact” as she initially stated to Josh Anderson.
Complainant 3 and the events of the night of 14 and 15 August 2019
33
119. We are grateful to Ms F and Ms C for setting out for us the context of the final
allegations.
120. We were informed that Jake Wood, the CEO of TR USA adopted a practice of filling a
truck with “thousands and thousands” of cans of beer from a local liquor store and
driving these back to the camp on every day of the conference. We were told “they used
a big pick-up truck to bring them there and it was stacked high” it was “paid for on the
Team Rubicon credit card”. One of the witnesses described to us how “they stopped
off at an off license and the owner of the shop was remarking how much she had sold
to them and the fact they had to restock. This was happening every night”. These cans
were freely available in big dump bins with ice around the camp.
121. We addressed the following questions to Mr Miller and Mr de la Cruz. The answers
below are in the format that they were sent to us by John Pitts:
“13. We have seen many references to excessive alcohol consumption at the conference
and have heard witness testimony relating to the alcohol consumption of a number of
attendees. However, we note that the YMCA at which the conference took place has the
following policy:
“Alcoholic beverages are not sold on-grounds and may be consumed only in the privacy
of your room, cabin or group meeting space.” This inquiry is not relevant as to
whether Mr. S engaged in misconduct.
If no alcohol could be purchased at the YMCA, how did it come to be consumed in such
large quantities by the attendees? This inquiry is not relevant as to whether Mr. S
engaged in misconduct.
34
14. Who purchased alcohol for the conference? This inquiry is not relevant as to
whether Mr. S engaged in misconduct.
15. How much did they purchase and by what means? This inquiry is not relevant as
to whether Mr. S engaged in misconduct.
16. Were the funds of the charity ever used to purchase alcohol for the
participants? This inquiry is not relevant as to whether Mr. S engaged in misconduct.
17. If alcohol was purchased from outside the YMCA, how was it transported to the
YMCA at Estes Park? This inquiry is not relevant as to whether Mr. S engaged in
misconduct.
18. How was alcohol made available to the participants at the conference? This
inquiry is not relevant as to whether Mr. S engaged in misconduct.
19. We have seen reference to some attendees having a very large number of “beer
tokens”. Please can you explain if you know what these were and how they were
distributed to attendees? This inquiry is not relevant as to whether Mr. S engaged in
misconduct.
20. We are aware that some of the attendees expected the conference to be “dry”. What
provisions were made for those who chose to abstain for reasons of personal safety,
health or religious observance? This inquiry is not relevant as to whether Mr. S
engaged in misconduct.
21. Please could you provide the invitation and/or joining instructions and any
information relating to guidance on alcohol consumption and/or other conduct which
35
were circulated before or during the conference? This inquiry is not relevant as to
whether Mr. S engaged in misconduct.
122. We believe that Mr Miller, Mr de la Cruz and Mr Wood do know the answers to our
questions and why they were asked.
123. The answers to the questions’ relevance to an enquiry as to how it was an employee of
a British Charity who was sent to a “dry” camp should have been able to consume
alcohol in such excess is obviously relevant to his defence to an allegation of
drunkenness.
124. Moreover, it should have been obvious to Mr Miller, Mr de la Cruz and Mr Wood that
the independent trustees of a British Charity have a responsibility for governance, the
proper use of charitable funds and for safeguarding. It is not open to them to do as they
were invited to do by John Pitts of Kirkland and Ellis LLP on the instruction of Mr
Miller, Mr de la Cruz and Mr Wood:
“We strongly encourage Team Rubicon UK to re-consider pursuing many of these lines
of inquiry with complainants and witnesses lest further irreparable damage be done to
the victims and the organization at large.” [emphasis added]
125. It should have been apparent to Mr Pitts, Mr Miller, Mr de la Cruz and Mr Wood that
it is not open to us to avoid pursuing obvious lines of enquiry because the answers
reflect poorly on the leadership of Team Rubicon US and their management of the
conference. It is the underlying conduct which is the cause of the “irreparable damage”
and not the fact that independent trustees happen to discover it.
36
126. In our view, the defensiveness of the response from Mr Miller, Mr de la Cruz and Mr
Wood (who immediately sought to instruct lawyers in two jurisdictions to refuse to
answer our questions) is indicative of their awareness that there is no answer to our
questions which they could give which is capable of withstanding scrutiny.
127. We make the following findings of fact. The Trustees of Team Rubicon UK permitted
and encouraged their employees to attend a Leadership Conference at a YMCA which
does not sell alcohol and in which alcohol consumption is strongly discouraged by the
following policy:
“Alcoholic beverages are not sold on-grounds and may be consumed only in the privacy
of your room, cabin or group meeting space.”
128. It was a reasonable expectation that attendees would consume either no alcohol at all
for the duration of the conference or in very moderate quantities in private.
129. This is particularly important in the context of an event attended by large numbers of
the veteran community which is notably afflicted by alcoholism and addiction.
130. We find that the policy of the YMCA was deliberately contravened, repeatedly and to
a very substantial level by Mr Wood’s provision of excessive quantities of alcohol
which was provided free to the attendees.
131. We consider it very likely that Mr Wood misapplied charitable funds for the purpose.
132. There was considerable pressure to drink by the CEO of TR USA and there was a level
of public humiliation of those who did not. We were told by Ms F “there was pressure
on [Mr S] to drink but that was because he was part of Jake Wood’s gang”.
133. Ms C told us that the Leadership Conference:
37
“did leave her feeling fairly uncomfortable as she felt that TR-USA seemed more like
a cult, with Jake Wood being a messiah like figure and she found the conversations
about TRG quite uncomfortable and it was clear that TR-USA were trying to
orchestrate something in terms of a plan and [Mr S] had challenged JW on this. [Mr
S] had said that what we were potentially being asked to be signed up to was unfair
and questioned why they would sign up to something that would disadvantage them”.
134. She was asked about the alcohol consumption and whether the amount being drunk
made Ms C feel uncomfortable in any way? She “thought this was just the way that
Jake Wood ran things out there and that she had gone to bed fairly early on the first
night but did recall Jake Wood being patronising. On the first night they had already
been up for 24 hours and it was fairly unpleasant to have to keep on going and it
appeared to her that Jake Wood wanted [Mr S] all to himself and he seemed quite
dismissive of her. Personally she had been left with an impression that if Jake Wood
got run over by a bus she wouldn’t know what would happen to the TR-USA because
he was such a cult figure for them. The aim was to get [Mr S] involved with Jake Wood
before the other CEO’s were coming to town and that he had asked [Mr S] to go into a
room [with him] every night and drink beer and the aim was clearly to get [him] in line
with them and sorting out Australia aligning with TRG. On the second night [Mr S]
challenged Jake Wood regarding the network and TR-USA looking to try and take over
TRG by looking to elect the board and who the Chairman was. [Mr S] challenged Jake
Wood saying this wasn’t fair and asked the question what would happen in three years
when TR-USA were at a 100 million and TR-UK were at 3 million. Jake Wood then
questioned “if they were at 100 million why would they want TR-UK on the board?”.
She didn’t trust Jake Wood”.
38
135. Ms C was asked whether she thought [Mr S] had been a credit to TR-UK as a
representative at the Conference? She replied “yes, people were warming to him, the
same as they always do, including Jake Wood. As to the question whether they drank
too much, she didn’t think it was that much but that [Mr S] couldn’t handle his drink.
She had only seen [Mr S] drink twice and this was only the second time and that he is
a lightweight and that he only needs two beers before he gets quite drunk. [Mr S] is a
happy drunk and she used to describe him as a Labrador when he has been drinking”.
136. There was a bonfire experience attended by around 250 people on the evening of 14
August 2019 at which participants were encouraged to talk about their service and what
TR meant to them. Ms C stated that “it was a very raw and emotional night and had a
very powerful effect… through her experience it can be very difficult to open up in that
environment when if there is no-one controlling the situation and picking up the effects
of what happened to veterans and that when having this kind of campfire event it needs
to be a fairly controlled environment given how past events can effect veterans in the
present”.
137. Mr S had not intended to speak at the bonfire and had done no preparation. Ms C told
us of the effect that the campfire experience had on Mr S:
“the campfire had got more and more stressful and that somebody had asked [Mr S] to
speak which was unfair as he had been standing at the back”
138. Mr S described to us how he was put under pressure by Jake Wood to relate his
experiences which included 2 deployments to Afghanistan. He was decorated for
gallantry in his first deployment and blown up in the second deployment by an
improvised explosive device resulting in his being medically discharged from the armed
39
forces and losing his career. He told us “it felt like a safe space” but that he had “made
a misjudgement and it was not”. He answered questions from others about his service.
There were two others who had served alongside him in Afghanistan. He told us “when
you share, you lower your guard that you would not with people who had not shared
that experience”.
139. He appears to have spoken with considerable eloquence for about 15 minutes to 250
people which suggests that he was not in a state of inebriation at this stage. His account
has been described to us by those who heard it as “raw” and “powerful” and
“heartfelt”.
140. He remained by the bonfire for a further 2 hours speaking to the two other Afghan
veterans and consuming more beer.
141. After the bonfire he went to the room of Jake Wood with Bryan Riddell, Geoff Evans
and Art de la Cruz, the COO of TRUSA . They had a very heated conversation regarding
the “toxic” relations in the TR network. There was a lot of beer in the room fridge and
by the time Mr S left the room he estimates that he had consumed 14 to 15 cans of beer
in total in the course of the evening. They were all drunk with the exception of the COO
of TRUSA. They used emotive language to one another. There is a history of friction
between the members of the network and in particular between TRUSA and TR Global
as a result of a falling out between the co-founders of Team Rubicon. The CEO of
TRUSA considers the TRUK, TR AUS and TR Norway/TRG relationship to be a
barrier to his future plans for the Team Rubicon network preferring a TR USA led
organisation.
40
142. Mr S left the room and walked into the lobby to go back to his room. He described
himself as being “too drunk and I walked into the wrong crowd in the wrong state of
mind”. Mr S described his experiences that evening as creating “the perfect storm”.
We agree that it is likely that it did.
143. Rowdy and disruptive behaviour had previously caused a member of the YMCA staff
to approach the group whom Mr S encountered in the lobby and they had had to move
inside as a result.
144. Mr S walked into the lobby and engaged in a wrestling match with witness 2, seemingly
in good humour.
145. Thereafter we have very little assistance from him in ascertaining the facts from the
point at which he encountered the group by the fireplace.
146. It does not follow that we should accept as true all the statements made by others (which
are frequently contradictory) merely because Mr S is not in a position through
inebriation to contest those accounts.
147. We have applied our own common sense and judgement to all the evidence available
to us and its limitations and decided as best we can which we consider reliable.
148. It is apparent from all the witness accounts that Mr S’s behaviour towards those he
encountered then deteriorated and that his language was offensive.
149. He then appears to have engaged Complainant 3 in a conversation which quickly
escalated into a dispute. The most persuasive account of what happened next is given
by Witness 2 who says “they were discussing military service and when Complainant
3 shared her opinion about the topic. [Mr S] did not seem to appreciate her opinion
41
and lashed out at her”. Another witness recalls the conversation was around “service,
prior service, military service, war… somehow Complainant 3 tripped {Mr S]into being
kind of a dick” and “it led to [Mr S] getting really heated and telling Complainant 3
that she was “an ungrateful prick”.
150. Comments attributed to Mr S include “you’re just a snowflake” and “you should be
thanking me for your security and for all the people I killed in the Middle East”. Note
that Mr S does not appear to have ever been deployed to the Middle East. He served
only in Central Asia
151. We consider it likely that Mr S was challenged by Complainant 3 on some aspect of his
earlier account of his wartime service in which his experience had been horrific and
that this provoked his response. But for his state of inebriation it is likely that he would
have responded to Complainant 3 (who was perfectly entitled to her own opinion) in a
more articulate and measured manner as he is clearly very capable of doing. All of the
witnesses recall Mr S as having used the word “cunt” but there are differences in
recollection as to whether this was directed at anyone in particular. Mr Riddell said that
he did not recall “[Mr S] directing this word to anyone in particular but that he was
using it in gest” however Witness 2 said that it was directed at Complainant 3. Another
witness said “it wasn’t generic, it was directed at people”.
152. We are told that “when Trip [Henderson] heard [Mr S] use this word, he got up from
his seat, headed over to Mr S and told him in his ear that he can’t be using that word”.
When Mr S heard this he said out loud “are you telling me I can’t say “Cunt!” Trip
told him again that he cannot use this word and Mr S again repeated himself and again
asked the same question out loud. Trip reiterated that he can’t be using this word”. But
for his state of inebriation, we believe that Mr S would have fully appreciated that there
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are cultural and gender sensitivities around the use of the word “cunt” and that it is
wholly unacceptable for a person in a leadership role to use it in public in England, let
alone in the USA, irrespective of whether it is addressed to anyone in particular. It has
not been suggested that he has done so on any other occasion before or since.
153. It is probable that as Complainant 3 bore the brunt of Mr S’s verbal abuse it was more
likely than not that “cunt” was understood by her to have been directed at her and we
consider that this would have been deeply distressing and publicly humiliating for her.
Mr S’s behaviour towards her has been described as “verbally abusive and demeaning”
and we agree that it was. We are told that Complainant 3 was crying which suggests
that [Mr S]’s behaviour towards her had an immediate impact.
154. We are told that the following morning and without any recollection of the events in
the lobby Mr S apologised. He was right to do so. We do not know if that apology was
accepted. It would be quite understandable if it was not.
155. We understand that the matter was then considered closed and it is unlikely it would
have been revisited but for the separate allegations made by Complainant 1 on 17
August 2019.
156. Nevertheless, had we been made aware of it in isolation we would still have considered
that disciplinary action was merited because the conduct concerns the extremely
unpleasant public verbal abuse of a female volunteer by a person in a position of trust
and authority.
157. We do not consider inebriation to be any defence. Rather it could be seen to be an
aggravating factor as the perceived lack of control must have made the encounter more
frightening for Complainant 3.
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158. Nor do we consider that it is capable of providing significant mitigation that Mr S was
encouraged to drink to excess and appears to have consumed a substantial portion of
the total alcohol consumption that evening in the room of the founder of TR and CEO
of TR USA, Jake Wood. It is the duty of those in positions of trust and responsibility to
conduct themselves at all times in accordance with the trust placed in them and to ensure
that they do not allow themselves to be coerced or persuaded to consume any substance
that they know will cause their judgement to be impaired or their conduct impugned
when others depend on them.
159. Similarly, it was irresponsible and reckless of those in leadership positions to encourage
and facilitate the excessive consumption of alcohol by others yet they apparently did so
without any regard to the consequences. They must also bear some responsibility.
Those who hold positions in public life such as the leadership of a charity are rightly
held to very high standards of personal conduct and integrity.
160. We acknowledge that Jake Wood frequently said “fuck” in the course of his
presentation at the conference and that TR has “We get shit done” as one of its mission
statements. We do not condone the use of bad language. However, we consider that
there is a difference between using bad language for effect and attention and the abuse
of a young woman for expressing an unwelcome, even offensive, opinion.
161. We also accept that Mr S was subject to some particularly repellent and distinctly
homophobic text message “hazing” by Jake Wood on the occasion he chose not to
drink. These text messages demonstrate derision of and hostility to homosexual people.
They reflect very badly on the character of Mr Wood and his fitness to lead a charity.
However, we would expect Mr S to have sufficient judgment not to be goaded by peer
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pressure and to appreciate that those text messages fall very far below the standards
expected of persons active in public life and to react accordingly.
162. We have considered very carefully whether there is any alternative in the circumstances
to dismissal.
163. There is no doubt in our minds that the conduct fell far below the standards expected
by the Trustees and that dismissal could be justified in the circumstances.
164. We have given great weight to the unsolicited letter signed by all members of the
permanent staff of the charity and we attach it to this decision.
165. We give especial weight to the view of General Sir Nick Parker that in the performance
of his functions as Chief Executive of TR UK, Mr S has been exceptional and that no
other concerns as to his performance or his fitness have ever been raised.
166. We have also considered very carefully whether it is possible for Mr S to continue in
his role given the views expressed by TR USA. However, TR UK gains the use of the
TR licence from TRG and not TR USA who are, at least for the present, a parallel
member of the network organisation.
167. It is apparent from the conversations reported to us that the desire on the part of the
leadership of TR USA to take over control of the Team Rubicon network pre-dates both
the awareness of the allegations and even the occurrence of the incidence which we
have upheld. The reliance now placed upon the allegations is, at the very least,
opportunistic.
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168. For reasons we set out below, we have serious misgivings about the leadership, culture
and values of Team Rubicon USA that we have learnt as a result of our enquiries which
we feel we must bring to the attention of the full Board of Trustees.
169. We have also considered whether Mr S poses a risk to vulnerable members of staff,
volunteers or the victims of natural disasters. We are satisfied having questioned at
length those members of staff with whom Mr S has day to day contact that he does not
pose such a risk and we trust that should those members of staff have cause to change
that view that they would, irrespective of seniority, immediately raise the matter
directly with the chairman, General Sir Nick Parker. We note that every female member
of staff signed the letter to us in support of Mr S.
170. We believe that if Mr S retains the trust and confidence of the trustees the matter could
be dealt with by way of final written warning. The warning should be in stark terms
that any repeat of the conduct would result in immediate dismissal. We also consider
that it would be prudent for Mr S to propose an action plan as to how he will ensure
that he never behaves in this way again irrespective of the circumstances or the
provocation.
171. There are matters which are not part of our determination which we ought to bring to
the attention of the trustees. We are concerned that the drunken and promiscuous
behaviour described to us at the conference, the wholly irresponsible approach to
alcohol provision, the misapplication of charitable funds, the failure to address the
mental health and safety consequences of the confessional aspects of the bonfire
experience, the photos and the founder’s text messages are completely indefensible in
the context of a charity.
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172. We are especially concerned as to the description of the “cult” like atmosphere and
culture of TR USA and the messianic and egotistical behaviour of its founder.
173. We consider that the Trustees of TR UK should consider whether it is appropriate for
TR UK to be involved in any TR USA activities in future. We consider that the Trustees
of TR UK should reflect upon TR UK’s relationship with TR USA and whether this is
a conduct and reputational risk.
174. We wish to record that we were subject to concerted attempts by TR USA to influence
our decision (including the wholly unnecessary instruction of law firms in two
jurisdictions) and that non-co-operation with our enquiries by the Senior Management
of TR USA frustrated our ability to conduct an investigation which was fair and
reasonable to Mr S and to the Complainants. We consider that they did not act in the
best interests of the Complainants or the organisation for which they are responsible.
Sara George
Andrew Purvis
Nick Fothergill